Stansbury v Datapulse Plc & Anor

A party is entitled to a fair hearing before an Employment Tribunal. Every tribunal member must remain alert and concentrate throughout the hearing. A member who has consumed alcohol and appears to fall asleep may make the hearing unfair, even if the decision is unanimous, reserved and correct on the merits. The Employment Appeal Tribunal may entertain a complaint about such conduct even though it was not raised at the time, assessed against reasonableness in all the circumstances. It may need to resolve disputed facts, although it may decide the legal consequence on assumed facts where appropriate. Once unfairness is established, the decision must be set aside and reheard by a differently constituted tribunal.

The appellant was dismissed for redundancy and brought an unfair-dismissal claim against his employer and its parent company. A Reading Employment Tribunal rejected the claim. He alleged that a lay member had consumed alcohol, fallen asleep and failed to follow the hearing.

The Employment Appeal Tribunal, presided over by Wall J, dismissed the procedural appeal. It assumed that the member had consumed alcohol and might have fallen asleep, but held that the hearing remained fair under the European Convention on Human Rights. The appeal concerned whether the EAT had wrongly declined to resolve disputed facts and whether the assumed circumstances required a rehearing.

Disposition and appellate function

Lord Justice Peter Gibson delivered the judgment, with Lord Justice Latham and Sir Martin Nourse agreeing. The appeal was allowed and the Employment Tribunal’s decision was set aside.

1. Failure to object. It is desirable for complaints about an Employment Tribunal member’s behaviour to be raised during the hearing. However, failure to do so is not an absolute precondition to an appeal. The omission must be assessed for reasonableness in all the circumstances. The approach in Kudrath v Ministry of Defence was correct, particularly given the difficulty of challenging a member who might later decide the case.
2. Fact-finding by the EAT. Where an appeal alleges misconduct, bias or procedural impropriety by an Employment Tribunal member, the EAT may have to act as judge of fact and resolve disputed evidence. It may require witnesses to attend for cross-examination, as explained in Facey v Midas Retail Security [2000] IRLR 813. It is not necessary to resolve every factual dispute where the legal consequence can properly be decided on assumed facts. The EAT misstated its function, but that error did not determine the appeal.
3. Fairness of the hearing. Every tribunal member must remain alert throughout the hearing and concentrate on the evidence and submissions. A member who appears not to be alert may cause the hearing to be unfair. This follows from the common law and is reinforced by Article 6(1) of the European Convention on Human Rights, which requires proper examination of the parties’ submissions, arguments and evidence. The principles concerning appearances and objective justification in Porter v Magill [2002] AC 357 and Kraska v Switzerland [1993] 18 EHRR 188 were relevant.
4. No cure from the merits decision. Unanimity, a reserved decision and the absence of any successful merits challenge do not cure an unfair hearing. A differently constituted tribunal might reach different findings at a retrial.
5. Application and remedy. On the evidence, it was established on the balance of probabilities that the lay member had consumed alcohol, appeared to fall asleep and failed to concentrate properly. The conduct did not provide the appearance of a fair hearing and was inappropriate for a tribunal member. The case was remitted for rehearing before a differently constituted Employment Tribunal.

• Court of Appeal (Civil Division): Appeal allowed. The Employment Tribunal’s decision was set aside and the case was remitted for rehearing before a differently constituted tribunal.
• Employment Appeal Tribunal: Wall J dismissed the appellant’s appeal on 8 May 2003. The procedural complaint was considered at a full hearing after the merits grounds had been rejected.
• Employment Tribunal, Reading: The unfair-dismissal complaint was rejected. Extended reasons were sent to the parties on 15 August 2001.